Ex husband delaying the financial settlement: how nine months of excuses ended

The legal issue

A mother of two teenagers separated from her husband after a long marriage. He ran his own business, and only he knew the family's finances. She rented a small house for herself and the children, while he stayed in the family home. After the divorce application they tried mediation, and at every session he promised his financial statement by the next one, blaming the accountant, then the pension provider, then work. Nine months after the divorce application she still had no figures for his income, the business or the house, and her savings were going on rent.

The law this rests on

• Matrimonial Causes Act 1973 s.25(1) and (2)(a): in deciding whether and how to exercise its financial powers, the court must have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family under 18, and in particular to the income, earning capacity, property and other financial resources which each party has or is likely to have in the foreseeable future.
• FPR 2010 r.9.4: an application for a financial order may be made in the application for a matrimonial order, or at any time after that application has been made.
• FPR 2010 r.9.12(1)(a): when the application is issued, the court fixes a first appointment not less than 12 weeks and not more than 16 weeks after the date the application was filed.
• FPR 2010 r.9.12(3): the date of the first appointment, or of any later appointment, must not be cancelled except with the court's permission; if it is cancelled, the court must immediately fix a new date.
• FPR 2010 r.9.14(1) and (2)(a): not less than 35 days before the first appointment, both parties must simultaneously exchange with each other and file with the court a financial statement (Form E), verified by a statement of truth.
• FPR 2010 r.9.14(5): not less than 14 days before the first appointment, each party must file and serve a concise statement of the issues, a chronology, a questionnaire, and a notice saying whether they will be in a position to proceed to an FDR appointment on that occasion.
• FPR 2010 r.9.15(8): both parties must personally attend the first appointment unless the court directs otherwise.
• FPR 2010 r.4.1(4)(b): when the court makes an order, it may specify the consequence of failure to comply with the order.
• FPR 2010 r.28.3(5), (6) and (7)(a): the general rule in financial remedy proceedings is that the court will not order one party to pay another's costs, but it may do so at any stage because of a party's conduct in relation to the proceedings, having regard among other things to any failure to comply with the rules, any order of the court or any practice direction.
• Practice Direction 28A para 4.4: where an order for costs is made at an interim stage, the court will not usually allow the resulting liability to be counted as a debt in the computation of the assets.
• Practice Direction 28A para 4.5: a party who intends to seek a costs order should ordinarily make this plain in open correspondence or in skeleton arguments before the date of the hearing.
• Practice Direction 9A, pre-application protocol: the protocol underlines the duty of parties to make full and honest disclosure; parties who disclose before starting proceedings should use the appropriate financial statement, such as Form E, as a guide to the format; prospective applicants are required to attend a MIAM unless they have a valid exemption.
• FPR 2010 r.37.2: a penal notice is a prominent notice on the front of an order warning that if the person disobeys it, they may be held in contempt of court and punished by a fine, imprisonment, confiscation of assets or other punishment under the law.
• FPR 2010 r.37.3(1) and r.37.4(2)(c) and (e): a contempt application in existing family court proceedings is made by an application under Part 18, and it must confirm that the order was personally served (unless personal service was dispensed with) and that it included a penal notice.
• Form E notes for guidance (GOV.UK, 01.23): Form E must reach the court and the other person no later than 35 days before the first appointment, whose date is on Form C (Notice of a first appointment); the court might make an order for costs if the deadlines for filing Form E are not followed.

How we approached it

We advised her to stop accepting new dates and to start a court timetable, since mediation had already been tried. We helped her write one open letter that set a final date for his Form E and said she would apply to court and ask for her costs if it did not arrive, so the costs warning was in open correspondence before any hearing. When he offered another excuse, she applied for a financial order on Form A, with our guidance.

We advised her to file her own Form E fully and on time, and her statement of issues, chronology and questionnaire 14 days or more before the first appointment, so that the delay sat with him alone. When he asked her to agree to move the hearing, we advised her to refuse, because nobody can cancel the date without the court's permission. We helped her prepare a dated list of every promise he had broken, taken from his own emails and messages, and a short note asking the judge for an order that he file and serve his Form E by a fixed date with a penal notice, and for her costs of the hearing. Once the order was made, we advised her to have it served on him personally.

The outcome

Her husband came to the first appointment without a Form E. The judge ordered him to file and serve it, with its documents, within 14 days, by an order carrying a penal notice, and ordered him to pay her costs of the hearing. She had the sealed order served on him personally. His Form E arrived before the deadline, with two years of business accounts and a pension valuation, and he paid the costs. At the next hearing the judge set the rest of the timetable, and a few months later the couple agreed terms that the court approved as a consent order. No two cases are the same, and this result does not predict another.

What to take from this

• Before proceedings, financial disclosure is voluntary. After a Form A application, the court lists the first appointment between 12 and 16 weeks after filing, and both Form Es are due at least 35 days before it. Fourteen days or more before it, each of you files and serves a concise statement of the issues, a chronology, a questionnaire and a notice saying whether you could move straight to an FDR appointment at that hearing.
• File your own Form E fully and on time, so that any delay sits with one person.
• Gather what Form E asks for: 12 months of statements for every account, your P60 and last three payslips if you are employed, the business accounts for the last two financial years if you run a business, and a pension valuation that will be no more than a year old at the first appointment.
• Warn in an open letter, before the hearing, that you will ask for your costs if the deadline is missed.
• Each side usually bears its own costs in financial cases, but a spouse who breaks the rules or a court order can be made to pay costs at any stage.
• Nobody can cancel the first appointment date without the court's permission, so you do not have to agree to move it.
• Ask the judge for a specific order: a fixed date for the Form E, a penal notice and your costs of the hearing. Have the sealed order served personally.
• Save every original email and text exactly as it arrived, and do not delete or edit any of them. Make no informal deal about money in writing without advice, and never post about the case online.
• If an order with a penal notice is broken, come back to court: a contempt application is made under Part 18 in the same proceedings.